Announcement

Collapse
No announcement yet.

Interesting Article on Joint Custody

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • #16
    Hill and other Conservatives are harshly critical of the Chretien-era Bill C-22, which died after being introduced in 2002 by former Liberal justice minister Martin Cauchon.

    I mean why did it die in 2002, when the Liberals were still in power?

    Comment


    • #17
      If I recall, it was sent back to committee for further study - loose translation: Martin was coming in as PM and he would have his own agenda, divorce reform was low on the priority list. Irwin Cotler who was his Justice Minister had intended to resurrect a further watered down version of C-22 but the Liberals lost the election this past January.

      I believe the plan with the Conservatives is to implement the recommendations of the Joint Committee on Custody and Access in from their 1998 report "For the Sake of the Children". I actually would be more than pleased to have changes to the Divorce Act introduced, if anything, to stimulate a national debate similar to that which occurred during the same sex marriage debate of the past few years.

      It's important to remember that whether the Tories introduce a presumption of shared parenting in any new legislation, I doubt very much that it will have any effect on the family law system in this country. As I said earlier (and have said in other threads) "you can't legislate good behavior among parents" - if one parent wants sole custody they are going to pursue it using the adversarial family law system regardless of whether shared parenting is the law or not.

      Comment


      • #18
        This is somewhat off topic but relevent to the concept.

        In this case of authority, the Judge discussed the presumption of Joint Custody since Kaplanis supra

        J.B. v. A.B., 2006

        http://www.canlii.org/on/cas/onsc/20...onsc10823.html

        Before Justice Joseph W. Quinn

        Heard on 4-6 and 9-11 January 2006

        Issues

        CUSTODY OF CHILD — Best interests of child — Conduct of parties — Domestic violence — Spousal abuse — During cohabitation, father heaped sarcasm and verbal abuse on mother and did make death threat against her — But even local children’s aid society agreed that these matters were situational and unlikely to recur and were aspect of father’s overall immaturity — He simply did not react well to crises or setbacks in his life but would never have capacity to carry out death threat — It was empty act of man caught up in stress and frustration of failed marriage and lacking emotional means to deal with situation — Mother had no fear of him and her own self-esteem was never affected by his behaviour — Evidence of his interaction with child was exemplary and there was never any suggestion that would reacting inappropriately with respect to child — Joint custody order.

        CUSTODY OF CHILD — Form of order — Joint custody — General — Operative but rebuttable presumption that joint custody is best for child — Court reasoned that public perception of non-custodial parent as second-class parent undeserving or unqualified to have custody is often inaccurate — Child’s best interests are ill served by this perception and would be better served by having two parents who participate in making important decisions in child’s life — Hence, presumption in favour of joint custody, meaning that initial burden of proof falls on parent opposed to joint custody to rebut presumption, but it may take very little evidence to do so (sometimes, evidence of single troubling incident) — Once presumption is rebutted, burden shifts to other parent to prove that joint custody would still be in child’s best interests.

        CUSTODY OF CHILD — Form of order — Joint custody — Grounds — Ability of parties to co-operate — Separated parents, particularly estranged parents, should not be held to unrealistic level of mutual co-operation — Co-operation should be workable, not blissful, and adequate but not perfect — In this case, parents communicated adequately about the child and there was no evidence about material instances of non-communication — Facts in this case met burden of proof in non-criminal proceedings, which was not formidable and persuaded court, on balance of probabilities, that child’s best interests would be served by joint custody of both parents.



        5: DISCUSSION

        5.1: Custody

        [60] A non-custodial parent is frequently perceived in the community as undeserving or unqualified to have custody of his or her child; and this perception is not always accurate. The result is that, sadly, a great many non-custodial parents are unfairly seen as second-class parents. It is not in the best interests of a child to have one of his or her parents viewed in this fashion.[22] The interests of a child are better served by having two parents participate in making the important decisions in his or her life. Therefore, I begin with the rebuttable presumption that an order for joint custody is best for a child and then I look for evidence to the contrary.[23] This means that the initial burden of proof falls on the party opposing a joint custody order to rebut the presumption. It may take very little evidence to do so (sometimes a single troubling incident will suffice). Once the presumption is rebutted, the burden shifts to the parent seeking joint custody to prove that such an order is in the best interests of the child.

        Footnote

        [22] - Two-tiered parenting also breeds antagonism between fathers and mothers.

        [23]. This presumption is not inconsistent with subsection 20(1) of the Children’s Law Reform Act, which says: “Except as otherwise provided in this Part, the father and mother of a child are equally entitled to custody of the child.” The Divorce Act does not contain a comparable provision; neither does that statute preclude the presumption of which I speak.

        LV

        Comment


        • #19
          Excellent bit of case law LV -highlights many concerns that a lot of people share.

          Introducing mandatory shared parenting definitely shifts the burden of proof from the person who wants shared parenting to the person who opposes it. So it would be reasonable to use a crystal ball and examine how a mandatory shared parenting regime might play itself out within the existing family law system.

          Scenario:

          John and Joyce have 2 children and have been married for 12 years. The kids are 6 and 8. Both parents have worked full time and the children have been in daycare since they were 2 years old while the parents worked. John and Joyce's marriage is going down in flames. John and Joyce are exceptional parents and both have been actively involved in the primary care of the children all their lives.

          The parties separate and like most fathers, John decides to move out before there has been any agreement established regarding custody and access to the children. John has made it known that he would like to have a shared parenting arrangement where the kids spend equal times in both homes. Joyce is opposed to the idea citing the following reasons:

          - the kids need one home, not two.
          - the kids will be bounced around
          - someone needs to be in charge
          - John is only interested in shared parenting to avoid the child support guidelines.


          One month after the separation:

          Both parties retain lawyers and both parties have been told that shared parenting is mandatory under recent changes to the Divorce Act. Joyce opposes shared parenting for the aforementioned reasons and John's lawyer recommends that John take a cautious course toward shared parenting because no order is in place regarding the children and it would be unwise to immediately begin litigating custody and access issues as the conflict would increase dramatically. The two lawyers begin the process of negotiating a settlement of all outstanding issues by fax - largely to identify both parties positions.

          John is served with a Statement of Claim for Divorce and Division of Matrimonial Property. John reads the Statement of Claim and under the heading "claims under the divorce act", Joyce asks the court for joint custody with primary care, control and residence to her and access for John of every second weekend with an overnight every second Wednesday.

          Two months after the separation

          John offers to attend family mediation through his lawyer and both parties begin the mediation process. They make great progress on Division of Assets and Matrimonial Property and a new session is scheduled to begin the process of negotiating an agreement as it relates to the children. John has been seeing the children every second weekend for the last two months and has broached the topic of increasing the children's time with him on numerous occasions, however, Joyce is vehemently opposed to this.The conflict between the parents increases dramatically as it relates to access to the children.

          Three months into the separation
          The parties have now attended two mediation sessions regarding custody and access and both are deeply entrenched in their positions. Joyce opposes shared parenting, John is in favor of it. The mediation process is clearly at a stalemate and ultimately breaks down - all agreements reached in mediation are now null and void as the process was without prejudice - both parties return to their lawyers. The conflict between the parents increases dramatically as it relates to access to the children.

          Four months into the separation
          John is tired of thes stalemate. He wants the kids half the time in accordance with the recent changes to the Divorce Act. Joyce still opposes it. John decides to seek relief through the courts. He makes his notice of motion, and Joyce is served with the Notice of Motion as well as John's Affidavit. Joyce reviews his Affidavit and prepares a responding Affidavit. In her Affidavit she cites that she has always been the children's primary caregiver and questions the motivation of John in seeking shared parenting. She cites that he has been refusing to pay child support as the law states that shared parenting is mandatory. She further states that the conflict between both parties is extreme and that someone needs to be in charge - might as well be her since she has been the primary caregiver.

          Five months into the separation
          Both parties appear before Justice Bloggins in Court of Queen's Bench. Justice Bloggins has already heard 10 similar motions that morning prior to John and Joyce. Justice Bloggins has a supervising judge who has been telling him, "clear the docket - get as many people in and out of court as fast as you can". Justice Bloggins asked the Clerk of the Court to provide a summary of the Affidavit contents because he doesn't have time to actually read the parties Affidavits. Both parties appear to be mired in a custody dispute, but there needs to be some Court Order in place to govern the custody/access situation on an interim basis. Justice Bloggins decides to uphold the status quo with a small revision - John can now have the kids every second Friday and drop them off at school on Monday mornings. Justice Bloggins tells both parties that the conflict has to stop beause it's impacting the children. He further states that there is simply too much conflict for shared parenting to work at this juncture. The case is headed for a trial. John is flabbergasted.

          Month five to trial
          Both parties are clearly focused on their own goals. John feels justified in seeking shared parenting as it's the law, is angry and frustrated that he is having to go to trial to enforce something that is clearly the law. John's lawyer explains that regardless of what the law says, a judge isn't going to order shared parenting if there is too much conflict between the parents.

          A bi-lateral parenting assessment occurs. It finds that both parties deliver adequate child care but that both parents are pre-occupied with looking good to the assessor and that the conflict between the parties is extreme. It recommends that the children remain with Joyce because of the conflict.
          John is apoplectic - "SHARED PARENTING IS THE LAW!!!!!"

          Trial
          It's an ugly trial. John's lawyer is arguing that shared parenting is mandatory and Joyce's lawyer argues that while it might be mandatory, it is not in the children's best interests to have shared parenting in such a dysfunctional situation and since Joyce has had the children living with her for the past eleven months, it wouldn't be in their best interests to go to shared parenting as this is the status quo - changing it would negatively impact the kids. Joyce's lawyer asks Justice Higgins to uphold the status quo and defer to caution.

          Decision
          Joint custody with primary care to Joyce. Justice Higgins decision states that the parties are too embroiled in conflict to make shared parenting work and that while shared parenting is mandatory, Joyce has provided sufficient evidence to show that shared parenting won't work.


          That's my take on it. So it begs the question:

          - Who is at fault?
          - Does fault even matter when conflict exists between the parents and both parents are actively engaged in it?
          - Was John's lawyer wrong to suggest taking a cautious approach early on?
          - Should John have immediately gone to court at the time of separation?

          Any shared parenting law has to take factors like this into consideration. Further, if the goal is to make shared parenting mandatory, presumably any new legislation would have to include mechanisms that will guarantee shared parenting from the moment of separation and frankly, I can't see how federal legislation can do that. Shared parenting legislation will mean that unless both parties agree to shared parenting in writing at the moment of separation, there will be a race to the court house to get an interim order in place either in favor of or opposed to shared parenting.

          So, what's the answer?

          There isn't one. We can't force shared parenting on people even though it might be an equality issue for some. Further, what kind of poisoned atmosphere for children would we have if parents had to immediately access the courts upon separation so that neither party can take advantage of the unwritten "status quo - too much conflict between the parents for shared parenting to work" argument?
          Last edited by Divorcemanagement; 05-28-2006, 09:58 AM.

          Comment


          • #20
            I do see the point, and for some individuals they would go to great efforts to sabotage a joint custodial relationship. ie: refusal to co-operate or to communicate.

            However, there is always a Parallel Parenting, a form of joint custody, whenever the child is with the parent, that parent makes decisions in regards to the child. This type of custody regime has been ordered in circumstances to prevent one parent from marginalizing the other parent from the children's lives.

            I can think of a few authorities where this model has been ordered.

            Cox v. Down Stephen - COURT OF APPEAL FOR ONTARIO [2003]

            http://www.canlii.org/on/cas/onca/20...onca10838.html

            LV

            Comment


            • #21
              I do agree that a vindictive parent will do whatever it takes to turn the screws on the other parent. And also poison the children and paretning relationships.

              What if in your use case above, when parent X (Joyce) goes to her lawyer., would the lawyer not state: you had better give shared parenting because the law is shared parenting. Right now you are withholding the children. This will not make you look good in court. As well, by doing so, if you litigate, you have a good chance of losing ans you will owe costs and could lose YOUR custody. Right now you have broken the law...

              ... or something like that.

              Also since it is John's right and the law to 50-50 he would not have the same kind of intimadation that occurs right now. He could simply offer 3 or 4 schedules. If she can't decide, he would decide for her. He can pick them up from daycare or school.

              Yes, that is kind of goofy to have to race to get the kids, but at least the law is on his side... not the other way around.

              I seriously do not get what is so hard with joint custody and access. I mean really, how many decisions during a day does one parent make that really needs both parents decisions? Or is so mission critical that it can't wait for an e-mail or phone call. Even if you were a NCP and your kid was with you and wanted a tatoo, nothing is going to stop you from giving them a ride and the cash if you want to. There already is the persumption that you are both parents making day-to-day decisions - just that one only makes them 4 days out of 30. Things like schools and daycares are more complicated, but that can be resolved over some time (and yes, may require legal assistance).

              My ex is absolutely for sabotaging joint custody and access. For the most part I can ignore her. If push comes to shove, and we end up in court over custody (again), I for sure could lose. It would certainly take her edge off if the default was joint custody and she could lose big $$'s taking me to court every 6 months.

              Comment


              • #22
                Hi Decent Dad, you wrote:

                What if in your use case above, when parent X (Joyce) goes to her lawyer., would the lawyer not state: you had better give shared parenting because the law is shared parenting. Right now you are withholding the children. This will not make you look good in court. As well, by doing so, if you litigate, you have a good chance of losing ans you will owe costs and could lose YOUR custody. Right now you have broken the law...
                That depends what the law says. If a federal law saying shared parenting is mandatory were to exist, then it would have to have a built in mechanism which defines what shared parenting actually looks like. That mechanism would have to be in concert with Provincial laws governing how courts in each province would look at the issue as well

                Because of this, I can't see a rebuttable presumption of shared parenting working unless those mechanisms existed. Finally, were those mechanisms to exist, it still won't change a case where a parent is intent on obtaining sole custody or primary care - there would still be a race to the court house at the onset of a separation to challenge a shared parenting law.

                Now if we assumed that the parent who doesn't want shared parenting decided against going to court at the onset of a divorce and they still wanted to get sole custody, we would likely have a "reverse status quo" situation.

                Right now the status quo favours the parent who has the children living with them the majority of the time. In a reverse status quo scenario, the parents would be living equally in both homes and the parent who sole custody would build their case to get it by emphasizing the exact same themes that exist in current litigation:

                - my ex is controlling
                - my ex wants to avoid child support
                - there is too much conflict

                As I said earlier, litigation occurs either way when someone is hell-bent on achieving a goal that they believe is best.

                As LV pointed our, parallel parenting is an option that would uphold an equal time share arrangement, but parallel parenting is basically this:

                "Mom gets the kids one week, dad gets the kids the other week. During periods of time that the kids are in mom's care, she is the primary caregiver. During the week when they are in dad's care, he is the primary caregiver".

                Interestingly, parallel parenting can also be a recipe for future litigation because while it emphasizes an equal time share arrangement, it also eliminates actual collaborative parenting which we all agree benefits children. It is when there is no communication in a parallel parenting regime that HUGE conflict emerges and very often both parties are back in court changing it.

                This is why I would prefer a family law system that didn't focus on "who gets the kids on what date" but rather, promotes collaboration by giving parents the tools to make whatever parenting arrangement they come up with work. For example, if you get an agreement on every single conflict issue between two parents to their mutual satisfaction and that agreement provides mechanisms to make a parenting arrangement functional, in other words, "the rules", then shared parenting probably could work in the majority of the cases. There will always be parents who want sole custody at all costs. Those parents should be asked in court the following question:

                "If the court rules against you and says that your former spouse can have sole custody, would you be agreeable to shared parenting?"
                Last edited by Divorcemanagement; 05-29-2006, 01:44 PM.

                Comment


                • #23
                  to Divorce Managment: I completely agree. Counselling and then mediation should be used to allow the parents to come to an agreement that they are both comfortable with. The focus should be on obtaining legislation that supports more social programs rather than presuming legislation would bring less conflict.
                  well put.

                  Comment


                  • #24
                    There was a "For the sake of the Children" report done in the 90's that basically stated that if our laws in Canada didn't change in regards to custody, access, support, then there was to be great problems in the future.
                    Thus today's problems.

                    This report is what.....15 years old.. and still carry's weight when introduced into trial books of authorities.

                    It is definately a interesting read, and a good push for your MP's to possibly have yet another joint report on today's issues of divorce and the laws.

                    Many states, and countries are vastly changing their divorce laws, yet Canada seems to be lacking in this area. Some centers in Canada are "more favourable" to fairness then other centers from my understanding.

                    Comment

                    Our Divorce Forums
                    Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                    Working...
                    X